Now, what was the addition? Only the right of sale in the original package after it had reached the consignee. Could the purpose of Congress and the purpose of this committee be more clearly defined than that? And on the same point, Mr. Reed, of Iowa, said:

I think no one would doubt the power of Congress to enact such a law-that is, a law providing that when intoxicating liquors are carried into that State as articles of commerce they shall be sold only for the purpose prescribed by the statutes of the State and under restrictions similar to those contained in the laws of that State. The pending bill would simply reach the same result in another way. Instead of prescribing, as Congress might, in specific terms the restrictions which shall be imposed upon its traffic, its effect would be to subject it to those restrictions. So that in either case the same result would be reached. The one enactment would as certainly operate as a regulation of the traffic as would the other.

I refer to this statement of Mr. Reed, not as indorsing the legal views expressed therein which may touch upon the question of the power of delegation or the right to delegate a part of the power, but to indicate in connection with everything else that was said by all the members of the House and by all the members of the Senate, in connection with the report of this bill from this committee, that the sole purpose attempted to be accomplished at that time was to cut out the incidental right of sale and not, as was argued by the State of Iowa in the Rhodes case and as has been stated by the advocates of the bill before this committee, to interfere with the shipment before delivery to the consignee.

The House substitute was adopted by the House, and the bill went to conference. The Senate refused to recede, and the House did, and in asking the House to concur, Mr. Reed stated that the only difference between the Senate bill and the House bill was that the Senate bill applied to intoxicating liquors only and the House bill was intended to apply to all commodities.

It is therefore perfectly apparent that all the statements which have been made before this committee to the effect that the proposed legislation is necessary in order to overcome the restricted construction of the Wilson law by the Supreme Court in the Rhodes case and to accomplish what was the original purpose of the Wilson law are not supported by the facts. But it is perfectly clear that the construction given the Wilson Act by the Supreme Court in the Rhodes case accomplishes precisely the purpose which was proposed to be accomplished by the passage of that law.

The position taken by the Prohibitionists, which led to the issue presented in the Rhodes case, was clearly an afterthought, based upon the hope that the language used could be so twisted or distorted as to accomplish something more than the original purpose.

In view of these facts, can any gentleman on this committee any longer claim that the proposed legislation is necessary to enable the States to apply their laws against the sale of intoxicating liquor, or that it is necessary to accomplish what was proposed to be accomplished at the time the Wilson law was passed, or that the Supreme Court, in its decision in the Rhodes case, in anywise restricted that purpose? I think clearly not.

If the purpose of the advocates of this bill, and of the members of the committee who might be inclined to favor it, based upon the statements of those advocates, is sincere, and they mean to accomplish only that, why not report the same bill which was reported by this

committee at that time, and then there will be no doubt about accomplishing what you intended to accomplish at that time?

In answer to questions from Mr. Clayton and Judge De Armond, as to the difference in the wording of the proposed bill and the wording of the Wilson bill, especially with reference to the words " within the boundaries of," Judge Smith stated that there was no difference, or, at least, that he would be very glad to be told what the difference was. It seems to me that the difference is radical. The words in the Wilson law, "shall upon arrival in such State or Territory," taken in their commercial and legal sense, carry with them the idea of destination, whereas the words in the proposed bill, “shall upon arrival within the boundary of such State or Territory," negative the idea of destination, and indicate the purpose to have the State law apply before the shipment reaches its destination in the State, and at any time after it passes the boundary limits. Much was said by both

Mr. ALEXANDER. Please state when the end of the quotation comes hereafter so we can tell what you are quoting and what is your own language.

Mr. HOUGH. That quotation ended after the word "territory." In fact, both of them did.

Much was said about what any State or any prohibition community would do if such a law was passed; but I desire to state, in this connection, that the proposed legislation must be judged by everything it is possible to do under it, by it, or through it, and not by what probably will be done.

The gentleman declared that it was not the purpose of this bill, or of anybody, to have State laws operate extraterritorially, but in making such statements two views were clearly overlooked. The first is, that if Congress undertakes to permit a State law to operate upon an interstate shipment before the transit is completed, it necessarily has the effect of attempting to give the State laws extraterritorial effect. Such was emphatically declared to be so by the Supreme Court in the Bowman case. But with respect to the proposed legislation we are not to be left in doubt. The difference between the Wilson law and the first provisions of the proposed measure are radical and vital, but there is a section which the remarks of my brother lead me to believe he has never read. It is as follows:

SEC. 2. That all corporations and persons engaged in interstate commerce shall, as to any shipment or transportation of fermented, distilled, or other intoxicating liquors or liquids, be subject to all laws and police regulations with reference to such liquors or liquids, or the shipment or transportation thereof, of the State in which the place of destination is situated, and shall not be exempt therefrom by reason of such liquors or liquids being introduced therein in original packages or otherwise, but nothing in this act shall be construed to authorize a State to control or in anywise interfere with the transporting of any liquors intended for shipment entirely through such a State and not intended for delivery therein.

We can imagine any number of laws of a most sweeping character which might be enacted under this permission, but it is only necessary to refer to an existing law in Iowa to demonstrate its viciousness. I refer to the law which forbids a common carrier from transporting any intoxicating liquors without first having received a certificate; and, mark you, it says first having received a certificate.

CSS-06-11

Something was said at the last hearing about the possibility of this certificate being obtained by the common carrier after it comes into the State of Iowa, but this second provision proposes to reach outside of the State and control its action where it starts in any other State of the Union.

Mr. ALEXANDER. May I interrupt you there?

Mr. HOUGH. Certainly.

Mr. ALEXANDER. Are you familiar with the Iowa law?

Mr. HOUGH. Yes, sir. I quoted it in my last argument, and it is printed that is, the Iowa law on this point. I do not know that I am familiar with all the provisions of all the laws of Iowa.

Mr. ALEXANDER. There seems to be some misapprehension in regard to what the Iowa law suggests in regard to liquor imported to a bona fide consignee. What is your opinion?

Mr. HOUGH. I think you mean a bona fide consumer.

Mr. ALEXANDER. A bona fide consunter.

Mr. HOUGH. The law makes no distinction between a consumer and the man who is going to receive for the purpose of selling. The Iowa law

Mr. ALEXANDER. Now, let me ask you this: Supposing you are a citizen of Iowa, and send to Louisville for a keg of whisky for your own consumption in your own household. Under the Iowa law could that be stopped at the borders of the State?

Mr. HOUGH. If you should pass this bill it would be an attempt to give the State of Iowa permission to stop it at the borders of the State, because

Mr. ALEXANDER. That is not the point. With the law as it exists at present would it stop it there?

Mr. HOUGH. It would if it had validity, but the Supreme Court of the United States, in the Rhodes case, said that it could not have that effect.

The CHAIRMAN. What you mean is, that when Congress has acted then the Iowa law becomes operative.

Mr. HOUGH. Exactly. If this would be held to be a constitutional enactment, then the State law would become operative, and the effect would be to give the State the power to stop an interstate shipment at the boundary, because the Iowa law draws no distinction in requiring the certificate, which is required to accompany the shipment, between a shipment that is going to be brought there for a man to sell and a shipment that is going to be brought there for a man to consume at his house.

Mr. BRANTLEY. The question is, under the law of Iowa as it exists to-day, if this pending measure is passed and is constitutional, would it have the effect suggested by Mr. Alexander?

Mr. HOUGH. That is what I say; it would have that effect. It would give them permission to stop the shipment that was unaccompanied by a certificate at any time after it had reached the boundary and prior to delivery to the consignee, and the suggestion of Judge Smith that they might have difficulty in catching it is no answer to that proposition, because it does not go to the principle, and laws are not to be passed on the theory that you may not be able to enforce them, but they are to be passed on the theory that they can and will be enforced.

Mr. BRANTLEY. I have not read the decision of the Supreme Court which decided the South Carolina dispensary caseMr. HOUGH. The case of Vance v. Vandercook

Mr. BRANTLEY. But I have been told the Supreme Court says that no State can pass a law which will prohibit an individual from importing intoxicating liquors for his own use. Is that a fact?

Mr. HOUGH. Yes, sir. I quoted that case in my last argument here. And they furthermore said that that is a right of the individual which is protected by the Constitution, a right existing prior to the Constitution and protected by the Constitution, and can not be whittled away or legislated away in any way whatever.

Mr. BRANTLEY. Is it not predicated upon the interstate-commerce clause of the Constitution?

Mr. HOUGH. They said it was that clause of the Constitution that protected that right.

Mr. BRANTLEY. Would not that protection apply as much to the man that wanted to consume as the man who wanted to sell—the man who wanted to import?

Mr HOUGH. Congress has the right to regulate an interstate-commerce shipment. Now, there is a difference between interstate commerce and an interstate shipment, and I refer to a decision in Iowa which explains all that is covered by interstate commerce, which is more than what is covered by the term "an interstate shipment." Congress has said that the incidental right of sale can be separated from the right to make an interstate shipment, although the Supreme Court had previously said that the incidental right of sale was a part of interstate commerce; and while Mr. Reed, of Iowa, stated that they were surprised, in view of the former decision of the Supreme Court in the case of Brown v. Houston (114 U. S.), I say they need not be surprised, if they will read that case a little closer, because it was forecast in that decision that there was a distinction between that kind of a case, which was a case where coal had gone in, involving no question of original package, and a case of where shipment can be made in what can be clearly considered an original package, and they used the words "original package" in the case, and indicated that if it came from a foreign nation it would be protected in that form until after sale. In the Vance v. Vandercook case they were discussing "discrimination " as well as the interstate-commerce clause of the Federal Constitution. The point was made that the dispensary law of South Carolina was invalid because it restricted the right of individuals from the different States to ship into the States.

Mr. ALEXANDER. The point there was that they first had to go to the dispensary officers.

Mr. HOUGH. Yes; they had to go to the dispensary officers and get a certificate of purity.

Mr. ALEXANDER. And the nonresident had to go to the officer of the State before he could ship it on. That was in Vance against Vandercook.

Mr. HOUGH. Now, if there had not been this right of the individual to his ship in for his own use, the dispensary law of South Carolina would not have been declared unconstitutional as being discrimination, not particularly as violating the interstate-commerce clause,

but as being discrimination against the citizens and the products of citizens of other States.

Mr. HENRY, of Texas. That is, class legislation?

Mr. HOUGH. Yes; and the Supreme Court says that, since that rights exists, an individual can order his liquors from any State in the Union, and that right can not be hampered in any way, and the court says, in the opinion, that it will refer to the question of restriction later. Now, then, when they come to it later they find that a citizen, according to the laws of South Carolina, had to get a certificate of purity; he had to get a sample of his proposed shipment.

Mr. ALEXANDER. From the State chemist?

Mr. HOUGH. He had to submit it to the State chemist and get a certificate of purity. Now, the Supreme Court declared that part of the South Carolina dispensary law unconstitutional, because, they said, that right could not be hindered in any way whatever or impeded.

Mr. ALEXANDER. Now, Mr. Hough, when Judge Smith was speaking I asked him this question:

Under this bill would not liquors be stopped at the border of Iowa?

And he replied:

They certainly would not and could not be, unless they were imported for sale, because there is no law of Iowa, and never has been any law of Iowa, which made liquors contraband.

Mr. HOUGH. He is mistaken. The law of Iowa to which I referred this committee provides that before any common carrier-he probably overlooked this law, which applies to common carriers as distinguished from laws which might apply to the individual that law says that no common carrier can transport in the State any intoxicating liquors unless he first receives a certificate, which must accompany the bill of lading, to the effect that the consignee is entitled to sell. The law of Iowa does not say anything about the right to consume at all; it makes no such distinction. In every case of a shipment of intoxicating liquors there must be that certificate that the consignee has the right to sell. And if a man is receiving for his own use and does not intend to sell, he could not get a certificate. Therefore, the shipment could not be accompanied by a certificate, and, therefore, it could not only be seized under the laws of Iowa, if this bill should be passed, but it could be seized at any time before delivery to the consignee, even before it reaches the town or city of its destination-any minute after it passes the boundary of the limits of the State-because it has not accompanying it that certificate which it is impossible for the man to get, because he does not intend to sell it. So, if you could physically carry out the law you could stop that shipment, and Judge Smith, in my opinion, did not answer your question correctly.

Mr. SMITH, of Kentucky. Will you embrace that provision of the Iowa law in your remarks?

Mr. HOUGH. I am sure it was in my last remarks, but I can not find it.

The CHAIRMAN. Your remarks were printed, and if you included it in your remarks you will probably find it there.

Mr. ALEXANDER. Just see if it is in your last remarks.

Mr. HOUGH (after examination of printed document). It is; here it is.